Deadlines clarified by court
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10 June 2013
The last minute acceptance of a payment into court has led to a ruling which spells out deadline requirements, reports Roger Pearson
The Recent settlement of an action in which investors alleged an accountancy firm had led them into a disastrous investment foray, in which they became Names at Lloyd's, has clarified rules on deadlines for accepting payments into court.
Andy Fletcher, keyboard player with pop group Depeche Mode, and Daniel Miller, chairman and owner of Mute Records, claimed that by reason of their assets, income investment policy and attitude to risk, they were unsuitable candidates for Lloyd's and should never have been encouraged to become names by top London accountancy firm Levy Gee. They also accused Levy Gee of accepting undisclosed commissions in respect of the Lloyd's transactions.
The case was settled more or less on the eve of it opening, with Fletcher accepting, within good time, an undisclosed figure in settlement of his claim against Levy Gee.
But it was not until 13 March (with the case due to start on 16 March), that Miller instructed his solicitors, Swycher & Co, to accept a payment into court in settlement of his claim.
The settlement, while it dramatically curtailed legal argument, did not end the dispute. Levy Gee's lawyers argued that the acceptance by Miller of the money paid into court had been outside deadlines set out in the White Book.
If the deadline of accepting the payment into court within 21 days is met, the claimant gets his costs paid by the other side up to the time of the acceptance. However, if the deadline is not met, costs become a matter for the judge's discretion, and he could rule that the claimant must pay the defendant's costs from the date of the notice of payment into court. Even an order that both sides pay their own costs from the date of notice would have been likely to leave Miller out of pocket.
But, says Stephen Beverley of Swycher & Co, the White Book has always been "grey" when it comes to laying down timing rules in such matters.
A fax accepting the payment-in arrived at the offices of Levy Gee's solicitors at just after 5.30pm on 13 March, with a messenger arriving at the offices with a hard copy of the letter just after 7pm.
Levy Gee's solicitors argued that these two notifications were invalid because they had arrived out of time and had to be deemed not to have arrived until the morning of the next working day, 16 March.
However, Mr Justice Neuberger accepted the argument of Ian Mayes QC for Miller. the judge held that while the fax did not comply with the White Book rules which stipulate notification by fax must be made by 4pm on the 21st day the hard copy of the acceptance was in time, even though it had arrived after the offices had closed.
The judge held that the deadline for hard copies of acceptance was midnight on the 21st day and warned that there were dangers in situations such as these in drawing analogies with contractual acceptances. He went on to rule that with the fax out of time, and thus deemed served on Monday, but with the hard copy of the letter in time, the deadline had been met and Miller was entitled to his costs.
"The decision is one which has clarified a conundrum in law as far as acceptance of payments in is concerned," says Beverley. "It is a point that needs to be born closely in mind, though, by those who are leaving it to the last minute to accept money paid into court."